Opinions
‘Because of sex’ approach to protecting trans people
Many analyses of Bostock decision missed the real history

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado
The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.
It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.
Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).
So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.
How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.
The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.
Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.
The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.
It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”
It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.
So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.
Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”
This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.
Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.
People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.
Dana Beyer is a longtime D.C.-based advocate for transgender equality.
Opinions
Do not forget that Renee Good was queer
Far-right media link shooting victim’s sexuality to her protest of ICE
Please do not forget that Renee Nicole Good was a queer woman.
Last week, Good, a 37-year-old American citizen, was shot and killed by a United States Immigration and Customs Enforcement agent in Minneapolis. Her wife Rebecca Good was present when the ICE agent shot her, standing outside their car. In the immediate aftermath, Minneapolis erupted with protests aimed at ICE in the city and Republican officials, including President Donald Trump and Vice President JD Vance, who argued the shooting was justified as an act of self-defense.
In a press conference held this past Thursday, Vance told reporters that Good was “a victim of left-wing ideology.” “I can believe that her death is a tragedy,” Vance said,” while also recognizing that it is a tragedy of her own making.” Many criticized Vance’s statement, especially given how he blamed “left-wing extremism” for Charlie Kirk’s death in September on a Utah campus and Vance himself doubled down on condemning those who were celebrating the far-right podcaster’s fatal shooting.
Department of Homeland Security Secretary Kristi Noem implied that Good was a domestic terrorist while Fox News host Jesse Watters said that “the woman who lost her life was a self-proclaimed poet from Colorado with pronouns in her bio.”
Laura Loomer, another far-right Trump supporter, tweeted, “‘She/her.’ Literally every time,” in response to what is believed to be Good’s Instagram account. Loomer and Watters both pointed out her pronouns are somehow part of the reason she was tied to ICE-related violence.
As these comments from far right pundits show, far-right media coverage was quick to connect Good’s queerness to her work to inhibit ICE activity in Minneapolis.
But while far-right news outlets highlighting Good’s queerness, centrist and even leftist news outlets also erased her wife’s experience, featuring interviews with Good’s mom and ex-husband but not her wife who was present for the shooting, feeding into the narrative that she was an “innocent” white mother while denying Good’s own agency in mobilizing for immigrants in her community.
Nobody should be shot by government agencies ever, and these news outlets do not need to play into the construction of an “innocent” white woman for people to be outraged by her death. In fact, in doing so and denying Good’s queerness, they deny the way in which Good’s identity likely affected the way she interacted with the police. For queer and trans people, police are not safe people–in fact, Good’s last words deescalating the situation reflect the ways that homophobia and misogyny prime queer women, and all women to placate men’s emotions.
And it still didn’t work. After shooting her, the ICE agent called her a “fucking bitch,” in front of her wife who was kept away from Good while she bled out in her car.
When the media reinforces the narrative that she was an “innocent” mother, it reinforces the same sexism and racism that allows police brutality to continue.
In an interview, author of the book After Purity released this past December, Sara Moslener said that “White womanhood has been constructed to require that white women sort of maintain purity within themselves as a way to maintain the purity within themselves as a way to maintain the purity of, the innocence of, the nation state. When the purity movement resurfaced in the 1990s, it was this recapitulation of the 19th century nation of sexual purity that was highly racialized.”
“It wasn’t something that was accessible to enslaved women, to other women of color, to immigrant women. It was this ideal of true womanhood that became connected to this idea of a strong nationstate. That rhetoric was then used to justify racial terror lynchings. If white women were threatened, you know, physically, bodily, culturally, they have the right to claim things. This was often used as a guise to justify violence and murder, especially against Black men. It even ties to the concept of Karen and the entitlement of white women, where they can weaponize their vulnerability,” Moslener said.
Good’s shooting for many people was a breaking point for this very reason — because it represented the first time that they had witnessed a white person killed by an ICE agent or a member of the police.
For some, their whiteness had been a source of safety because of the privilege of their skin color, or so they thought until Good’s murder this past week. In the aftermath, they are rethinking if this privilege will continue to protect them and what it can mean in a world where violence against white women’s bodies has long caused social backlash.
This is not a reason to stop fighting — Good was not the first person killed by ICE, not even the first person killed by ICE in 2026, but her whiteness is one of the central reasons that it incited outrage — because of a society that privileges and protects white women’s bodies. To describe Good as solely an “innocent” white woman, to deny her queerness, is to play into this performance of outrage about the brutalization of white women’s bodies.
If discussions of Good’s queerness — and persistent queerphobia against queer women — is not considered in our outrage, in our protests, we feed right into the same narratives that mean some police brutality, especially that against queer and trans people and people of color, goes completely unreported and unchallenged.
This is state-sanctioned violence, and in the immediate aftermath of Good’s death, the Trump administration has demanded that people deny the evidence of their eyes and ears, has pushed the narrative that Good weaponized her vehicle against an ICE agent and that agent fatally shooting her was an act of self defense. This is categorically false but denying what we know to be true, what we can witness ourselves and understand, is the final step in fascism armed and funded by the government.
But let’s be frank: This is not the first time that the American police or a government agent has murdered an unarmed person. Just under six years ago, George Floyd was murdered by police officers in the same city — his death was a breaking point for many who had witnessed police brutality against people of color.
While people are eager to say Good’s name, we cannot say or remember her without remembering and saying the names of Black and Brown men and women, especially disabled people of color, who have been murdered in the hundreds by the police. Their names are often said, their murders often go unquestioned.
People have been and will continue to say Good’s name largely because she was a white woman but the names of Black and Brown people go unsaid and unrecognized because of a system that performs outrage about violence against white bodies. What Good’s murder realized was how a system built on the protection of white women — a Christian nationalism committed to Social Purity — will still sacrifice white women who refuse to fall in line.
Six federal prosecutors in Minnesota resigned this week over the Justice Department’s push to investigate Good’s widow. Among them was Joseph Thompson, a career federal prosecutor, who objected to investigating Good’s wife as well as the department’s refusal to investigate whether the shooting was lawful.
In the signs, in the protests, in the prayers and pleas that you say and make in the aftermath of Good’s murder, do not deny her queerness, do not deny who she was and do not deny the work she did because in performing outrage against the murder of an “innocent” white mother we replicate the same systems of harm that hurt us all.
Emma Cieslik is a museum worker and public historian.
Letter-to-the-Editor
D.C. electoral bumper car season is in full swing
More than a dozen candidates running for incumbent Eleanor Holmes Norton’s seat
The District of Columbia has entered into a challenging time not seen since Dr. Martin Luther King was murdered, the city burned and rioted and risked home rule being taken away. While statehood has twice passed the U.S. House of Representatives, the dream of being the 51st star on the American flag stagnates, to say the least.
Currently according to Politics 1.com, there are already 14 Democrats including two sitting members of the City Council (At-Large Robert White and Ward 2’s Brooke Pinto) and one Republican who have declared their candidacy to become the new voice in Congress. Unfortunately Congresswoman Eleanor Holmes Norton has refused to either announce her intentions to run for re-election again or gracefully acknowledge her time is over and she is ready to hand over the reins to continue the battles inflicted upon our home city. Congressional representation by press releases has simply got to stop as soon as possible!
Rank choice voting is going to be implemented in this 2026 cycle despite efforts to overturn or delay its implementation. Regardless of your thoughts on the new system, this will be one very interesting contest year to say the least. Rank choice … ready or not … here it comes!
Needless to say, the race for the Congressional seat is not the only major contest. Let us not forget the other positions up for election: the mayor, the attorney general, the chairman of the City Council, several ward and at-large races for the council. Add all these up and you will be looking at more moves on the political chess board than seen in the first Harry Potter film with the same results too. (As an aside, while the District of Columbia has no elected senators, it should be pointed out that any elected House member AND the District mayor have Senate floor privileges when in session.)
Before the June primary, it would be wise to make sure your voting registration is still current at the D.C. Board of Elections. Also, please urge friends not registered to do so as soon as possible. May we have the strength and will power to take back our city and stand up to those who want to destroy it.
Opinions
Zach Wahls stood up for us, now let’s stand with him
Young Iowa Democrat running for U.S. Senate
It was 15 years ago, on Jan. 30, 2011, that a college student, Zach Wahls, bravely stood in front of the Iowa Legislature, and spoke out, defending the marriage rights of his two moms. On Jan. 28 we will celebrate the 15th anniversary of that speech. That was the first time I, and millions of others, heard of Zach Wahls. I know Zach had no idea that speech would propel him to national prominence. It went viral, and Zach was invited to appear on the Ellen DeGeneres show, among other appearances.
At the time, he was an engineering student at the University of Iowa. As he has said, when he prepared his notes over the weekend for his Monday speech to the legislature, he had no idea where this would lead him. Today, so many of us, not just his moms, have the chance to repay him for what he did that day, when he defended all our rights in Iowa. In the past 15 years, Zach has never stopped standing up for the rights of his moms, and for all of us in the LGBTQ community.
I first met Zach at an event in Washington, D.C., when he was leading the fight to allow gay men to be leaders in the Boy Scouts of America. Having been a Boy Scout myself, and an Explorer adviser, and having promoted scouting for the handicapped (the term we used back in those days) this was an important fight for me. I was both honored to meet Zach, and have the chance to join him in that fight. Since then, I have followed his career. First as he went to Princeton for his graduate degree, and then back to Iowa, he is a sixth generation Iowan, to run for, and win, a seat in the Iowa State Senate. He was then elected to the post of minority leader. Today, Zach is running to become the United States Senator from Iowa. Zach is a member of the younger generation so many of us want to see serving in Congress.
As soon as I heard Zach was running, I endorsed him. Many of you may have read my endorsement column in the Blade. He was recently in Washington, D.C. for a fundraiser held at the Women’s National Democratic Club, where I had the pleasure of meeting his wife, and his absolutely adorable son. I kidded him he should never go campaigning without them. Now, it’s important to remember, he is running in Iowa. Not an easy race to win. He has a primary to win, which I firmly believe he will, and then his likely opponent is the ultra MAGA Republican Congresswoman Ashley Hinson (R-Iowa). A poll done just before Sen. Joni Ernst (R-Iowa) said she would not run again, had Zach leading her. That may have been part of the reason she dropped out. If you followed Zach’s career in Iowa, you understand why Iowans would vote for him. If you haven’t, take a look at his website, to get an idea of where Zach stands on the issues, and the things he has been doing to fight for all Iowans. His proposed federal legislation, Keep the Promise Act, would strengthen Social Security. Zach understands we need to defeat the fascists working with the felon in the White House, before they totally destroy our country. He understands we need to fight for affordable healthcare for all, for his constituents in rural Iowa, who are getting hit the hardest by the felon’s policies. Iowa farmers are losing their farms because of the felon’s policies. While continuing to fight for the LGBTQ community, Zach has always understood, we are part of the broader community he is now fighting for.
I hope those of you who read this column, will join with me, support Zach, and be part of the Zoom call on Wednesday, Jan. 28, to celebrate the 15th anniversary of Zach’s speech to the Iowa Legislature. To join, click on this link, and sign up. I also ask you to share this link with everyone you know. Our community owes something to Zach, but everyone will benefit, if Zach Wahls ends up in the United States Senate. He will make us all proud.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
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